Bill Text: TX HB3198 | 2021-2022 | 87th Legislature | Introduced


Bill Title: Relating to the diagnosis, maintenance, and repair of digital electronic equipment.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2021-03-19 - Referred to Business & Industry [HB3198 Detail]

Download: Texas-2021-HB3198-Introduced.html
  87R7954 JES-D
 
  By: Meza H.B. No. 3198
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the diagnosis, maintenance, and repair of digital
  electronic equipment.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle C, Title 5, Business & Commerce Code, is
  amended by adding Chapter 113 to read as follows:
  CHAPTER 113. DIAGNOSIS, MAINTENANCE, AND REPAIR OF DIGITAL
  ELECTRONIC EQUIPMENT
         Sec. 113.001.  DEFINITIONS. In this chapter:
               (1)  "Authorized repair provider" means an individual
  or business entity that is not an affiliate of but has an
  arrangement with an original equipment manufacturer:
                     (A)  under which the original equipment
  manufacturer grants to the individual or business entity a license
  to use a trade name, service mark, or other proprietary identifier
  for the purpose of offering diagnosis, maintenance, or repair
  services for digital electronic equipment under the name of the
  original equipment manufacturer; or
                     (B)  to offer diagnosis, maintenance, or repair
  for digital electronic equipment services on behalf of the original
  equipment manufacturer.
               (2)  "Digital electronic equipment" means any product
  that, to function, depends wholly or partly on digital electronics
  embedded in or attached to the product.
               (3)  "Documentation" means any manual, diagram,
  reporting output, service code description, schematic, or other
  guidance or information provided to an authorized repair provider
  used in the diagnosis, maintenance, or repair of digital electronic
  equipment.
               (4)  "Embedded software" means any programmable
  instructions provided on firmware that is delivered with digital
  electronic equipment or with a replacement part for that equipment
  for the purpose of equipment operation, including all relevant
  patches and fixes made by the original equipment manufacturer of
  the digital electronic equipment or replacement part for that
  purpose.
               (5)  "Fair and reasonable terms" means:
                     (A)  with respect to making available a
  replacement part or a tool that is not software, making the part or
  tool available:
                           (i)  under costs and terms equivalent to the
  most favorable net cost and terms offered to an original equipment
  manufacturer's authorized repair provider for obtaining an
  equivalent part or tool, accounting for any discounts, rebates,
  means of enabling fully restored and updated functionality, rights
  of use, convenience of delivery, or other incentive program offered
  to the authorized repair provider, or any additional cost, burden,
  or impediment the manufacturer imposes on an independent repair
  provider;
                           (ii)  without any condition, substantial
  obligation, or restriction that is not reasonably necessary to
  allow the owner or independent repair provider to engage in the
  diagnosis, maintenance, or repair of the manufacturer's digital
  electronic equipment; and
                           (iii)  without conditioning that
  availability on the recipient being an authorized repair provider;
  and
                     (B)  with respect to making available a tool that
  is software, making the tool available at no charge, without
  requiring authorization or Internet access, and without imposing
  any other impediment to access or use of the tool in a manner that
  impairs the efficient and cost-effective diagnosis, maintenance,
  or repair of the equipment; or
                     (C)  with respect to making available
  documentation, including any relevant updates to the
  documentation, making the documentation available at no cost,
  except that an original equipment manufacturer may charge the
  reasonable actual cost of preparing and sending a copy of the
  documentation when the documentation is requested in physical
  printed form.
               (6)  "Firmware" means a software program or set of
  instructions programmed on digital electronic equipment or on a
  replacement part for the equipment that allows the equipment or
  replacement part to communicate with itself or other computer
  hardware.
               (7)  "Independent repair provider" means an individual
  or business entity operating in this state:
                     (A)  who does not, on the individual or entity's
  own behalf or through an affiliate, have an arrangement with an
  original equipment manufacturer as described by Subdivision (1) and
  who is engaged in diagnosis, maintenance, or repair of digital
  electronic equipment; or
                     (B)  that is an original equipment manufacturer,
  or who is an individual or business entity who has an arrangement
  with that original equipment manufacturer as described by
  Subdivision (1), only with respect to diagnosis, maintenance, or
  repair of digital electronic equipment not manufactured by or sold
  under the name of that original equipment manufacturer.
               (8)  "Manufacturer of motor vehicle equipment" means a
  business entity engaged in the business of manufacturing or
  supplying components that are used in the manufacture, maintenance,
  or repair of a motor vehicle.
               (9)  "Motor vehicle" means a vehicle that is designed
  for transporting individuals or property on a street or highway and
  is certified by the vehicle's manufacturer under all applicable
  federal safety and emissions standards and requirements for
  distribution and sale in the United States. The term does not
  include:
                     (A)  a motorcycle; or
                     (B)  a recreational vehicle or manufactured home
  equipped for habitation.
               (10)  "Motor vehicle dealer" means an individual or
  business entity who in the ordinary course of business:
                     (A)  sells or leases new motor vehicles under a
  franchise agreement;
                     (B)  holds a license issued under Chapter 2301,
  Occupations Code, and a general distinguishing number issued under
  Chapter 503, Transportation Code; and
                     (C)  is engaged in the diagnosis, maintenance, or
  repair of motor vehicles or motor vehicle engines under the
  franchise agreement.
               (11)  "Motor vehicle manufacturer" means a business
  entity that manufactures or assembles new motor vehicles.
               (12)  "Original equipment manufacturer" means a
  business entity that sells, leases, or supplies new digital
  electronic equipment manufactured by or on behalf of the business
  entity.
               (13)  "Owner" means an individual or business entity
  who owns or leases digital electronic equipment purchased or used
  in this state.
               (14)  "Replacement part" means a new or used
  replacement part made available by the original equipment
  manufacturer for the purpose of maintenance or repair of digital
  electronic equipment manufactured, sold, or supplied by the
  original equipment manufacturer.
               (15)  "Tool" means any software program, hardware
  implement, or other apparatus used for diagnosis, maintenance, or
  repair of digital electronic equipment, including software or
  another mechanism that:
                     (A)  provisions, programs, or pairs a new part;
                     (B)  calibrates functionality; or
                     (C)  performs any other function required to
  restore the equipment to fully functional condition.
               (16)  "Trade secret" has the meaning assigned by 18
  U.S.C. Section 1839, as that section existed on January 1, 2021.
         Sec. 113.002.  INAPPLICABILITY OF CHAPTER. This chapter
  does not apply to:
               (1)  a manufacturer of motor vehicle equipment;
               (2)  a motor vehicle manufacturer;
               (3)  a motor vehicle dealer acting in that capacity; or
               (4)  a product or service of an entity described by
  Subdivisions (1) through (3).
         Sec. 113.003.  REQUIREMENTS FOR ORIGINAL EQUIPMENT
  MANUFACTURERS. (a) For digital electronic equipment, including
  parts for that equipment, sold or used in this state, the original
  equipment manufacturer of the equipment or part shall make
  available on fair and reasonable terms to any independent repair
  provider or to an owner of digital electronic equipment
  manufactured by or on behalf of, sold by, or supplied by the
  original equipment manufacturer:
               (1)  documentation, replacement parts, and tools,
  including any updates to information or embedded software, for that
  equipment or replacement part; and
               (2)  for equipment containing an electronic security
  lock or other security-related function, any special
  documentation, replacement part, or tool needed to disable and
  reset the lock or function when disabled in the course of diagnosis,
  maintenance, or repair of the equipment.
         (b)  An original equipment manufacturer may make available
  the documentation, replacement part, or tool under Subsection
  (a)(2) through an appropriate secure release system.
         (c)  Notwithstanding Subsection (a), if an original
  equipment manufacturer provides an express warranty with respect to
  digital electronic equipment and the wholesale price of that
  equipment is at least $100, the manufacturer shall provide any
  replacement part, tool, or documentation to enable repair of that
  equipment during the manufacturer's warranty period at an equitable
  price, including convenience of delivery and enabling
  functionality, that takes into consideration:
               (1)  the actual cost to the manufacturer to prepare and
  distribute the part, tool, or documentation, without considering
  research and development costs;
               (2)  the ability of owners and independent repair
  providers to afford the part, tool, or documentation; and
               (3)  the means by which the part, tool, or
  documentation is distributed.
         (d)  This section does not require an original equipment
  manufacturer to make available a replacement part if the part is no
  longer available to the original equipment manufacturer.
         (e)  An original equipment manufacturer who offers the
  services of diagnosis, maintenance, or repair of the manufacturer's
  own digital electronic equipment, and who does not have an
  authorized repair arrangement with an individual or business entity
  that is not an affiliate, is considered to be an authorized repair
  provider with respect to that equipment.
         Sec. 113.004.  CONSTRUCTION OF CHAPTER. (a) Nothing in this
  chapter may be construed to require an original equipment
  manufacturer to divulge a trade secret to an owner or an independent
  service provider except as necessary to provide documentation,
  replacement parts, and tools on fair and reasonable terms as
  provided by this chapter.
         (b)  Nothing in this chapter may be construed to alter the
  terms of an arrangement described by Section 113.001(1) between an
  authorized repair provider and original equipment manufacturer,
  including the performance or provision of warranty or recall repair
  work by the authorized repair provider on behalf of the original
  equipment manufacturer under an arrangement described by Section
  113.001(1), except that any provision in an agreement between an
  authorized repair provider and original equipment manufacturer
  that purports to waive, avoid, restrict, or limit the original
  equipment manufacturer's obligation to comply with this chapter is
  void and unenforceable.
         Sec. 113.005.  DECEPTIVE TRADE PRACTICE. A violation of
  this chapter is a deceptive trade practice in addition to the
  practices described by Subchapter E, Chapter 17, and is actionable
  under that subchapter.
         SECTION 2.  To the extent of a conflict between Chapter 113,
  Business & Commerce Code, as added by this Act, and a provision of
  an agreement between an authorized repair provider and original
  equipment manufacturer entered into before the effective date of
  this Act, the provision of the agreement prevails.
         SECTION 3.  This Act takes effect September 1, 2021.
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